When Copyright And Contracts Can Get In The Way Of Art

from the tales-from-the-creative-front-lines dept

Back in January I was asked by the Brooklyn Museum to create a set of 11 iconic Vishnu avatars for an exhibit they’re planning in June. They didn't offer a whole lot of money – an “honorarium,” they called it – but said the images could be under a Free license (they said CC-BY-SA was fine). I chose to do it because it was a cool gig, right up my alley; and I love the Brooklyn Museum and was excited to have my art be part of one of their exhibits. It turned out to be more work than I expected, but I was very pleased with the results.

Thus began a comedy of errors, the climax of which may have yet to be reached.

Kurma the Tortoise

First they wanted revisions. Creating is fun, but revisions are not. For what they were paying, revisions weren’t part of the deal. We hadn’t signed a contract; they hadn’t even mentioned a contract. It was just an oral agreement for a modest sum of money (“honorarium”) and because the work would be CopyLeft they could do whatever they wanted with it, including revise and modify.

Varaha the Boar

I hadn’t freelanced in years. Sita Sings the Blues took up nearly all my time between 2005 and 2011. I had gained a lot of self confidence during that time and was out of my old freelancer habits. Instead of doing whatever they asked and resenting them for it, I did something I’d never done before: I said no. I made sure to be polite. I consulted trusted friends, examined my motives, and was willing to accept any consequences, including being “fired.”

Narasimha the Lion-Man

The worst case scenario would be that they wouldn’t use the art and wouldn’t pay me. I was more concerned about the art than the money. I like money too, of course. The best-case scenario would be that they would use the art and pay me. But if they didn’t pay me, I planned to release the art myself, so anyone could use it, including them. They would be free to use the art even if they didn’t pay me.

The happy fact is that once I realized saying “no” was an option, any budding resentment at their requests evaporated. They were just trying to get what they wanted, which is what everyone does. It fell on me to set boundaries. It’s not wrong to try to get what you want; it’s also not wrong to say no.

Vamana thye Dwarf

After I said no, they produced a contract – one that I never would have signed, even if they’d ever shown it to me before, which they hadn’t. The contract granted them unlimited revisions. Time passed, I politely stated and re-stated that the work was Free, and already completed; they could do whatever they wanted with it, and weren’t even legally bound to pay me.

Parashurama the Axe-Wielding Brahmin

Finally they removed the revisions clause – but added a new non-compete clause. This would make my work Free for everyone in the entire world to use, except me. I told them I couldn’t sign it, and they assured me it didn’t apply to the drawings I’d done, but anything I might do that would be “similar.” They said the non-compete language absolutely had to stay in. I again pointed out the work was done, they had all the image files, and they could do whatever they wanted with it, without a contract and without even paying me.

Rama the King

I understand why contracts can be useful: the producer wants assurance of payment, and the payer wants assurance of production. If either party fails to live up to their obligation, the other party can punitively refuse theirs. But I had already done the work. I didn’t need a contract to incentivize it. Of course I wanted to be paid, and I thought paying me would be the decent thing to do; but the work was done, and I placed no restrictions on it.

Krishna the Cowherd Prince

I don’t like contracts. They are overused and unnecessary in most cases. Often it takes more time to negotiate a contract than it does to execute the work itself. I agree it is uncool and wrong to promise money and not deliver, but I hope to never work with anyone who can’t be trusted to live up to such a simple promise. If they don’t, a contract is unlikely to make it better. I’d have to “go legal” on them to enforce it, and unless it’s a really huge amount of money they reneged on, I’d have to spend more money and time on the legal enforcement. Art and Law should stay as far away from each other as possible. I manage to get plenty of work done without contracts, and I manage to take in money as well.

Balarama the Brother of Krishna

Throughout all of this I refrained from releasing the images myself, so the Brooklyn Museum could have first use. First use bestows such a competitive advantage that copyright is irrelevant. If the Museum rolled out merchandise first, any potential competitors would be unlikely to catch up. The work would immediately be associated with the Museum, before any competitor could associate it with anything else. Any sane contract would have obligated me to grant them first use, but that wasn’t in their contract at all, even though the Free license was. Their contract was built on the assumption of copyright, just with a CC-BY-SA license inserted into it. (Law students take note: most lawyers have no clue about the implications of Free licenses. Please try to fix this.) The non-compete clause was pointless, but a first use provision would have been essential for them.

Buddha the Preacher

Anyway, time continued to pass, and they finally let me strike out the non-compete clause so I’d just sign the damn contract and make the project digestible to their bureaucracy. So I did, and they paid me! Slightly more than the initially specified “honorarium” too. This was back in March. I’ve been looking forward to the Vishnu exhibit ever since, eager to finally have my illustrations see the light of day in the glorious setting of the Brooklyn Museum.

The exhibit is set to open in June. It should be really cool! But it won’t include my illustrations, because on May 5th they informed me their director wants to “take it in another direction.” Yep, they dropped my art, with just a few weeks to go.

I’m really glad that I specified a Free license from the very beginning. If I had granted them a restrictive copyright, then, when they axed the art, no one would be able to use it. So here’s yet another benefit to Free Culture: a client can’t kill it.

Kalki the Avatar of the Future

Addendum: As Terry Hancock wrote in the comments on my blog: “in the end, the museum subsidized an enrichment of the commons, for which I am grateful to them.” Me too!

All images CC-BY-SA. Click for 640-pixel-square PNGs with transparent backgrounds. High resolution available here.

Reader Comments

Re: pro-paper

(i'd hate to be a lawyer at the year 3000).

I'd bet many lawyers would disagree with you there. Every new line is a billable line, as well as a verification throughout the rest of the contract for conflict. The longer each contract gets the exponentially complex they get.

It is sadly in every lawyers' interest to make every contract as complex and long as possible for their top dollar.